What is discretional visa cancellation?
Discretionary powers to visa cancellation are permissible by the Minister or his/her delegate of the Immigration department (Currently called Department of Home Affairs), but visa case officer doesn’t have to exercise this power to cancel your visa. This power is authorised under s116 of Migration Act 1958
Discretionary Power on Cancellation to
Australian Visa and citizenship
Who might be affected by s116
Any Australian visa holders- temporary or permanent visa holders.
What triggers s116 cancellation?
- The Minister thinks your presence might be a risk to the health, safety or good order of the community or a part of it. – For example, you have been infected with a certain infectious disease.
- Certain assessments about you have been made by the Foreign Minister, ASIO, Interpol or under particular sanctions legislation.
- You are suspected of committing a migration-related offence.
- You hold a temporary visa and have been convicted of an offence.
- You hold a bridging ‘E’ visa and have charges pending against you, or certain Australian agencies are investigating you.
Other non-character issues might lead to s116 cancellation
- You cannot establish your identity.
- You were never, or are no longer, eligible for that visa.
- Fraudulent conduct in obtaining the visa is suspected.
- Visa conditions have not been complied with.
- You gave incorrect information as part of the application process.
- The grant of visa was otherwise unlawful.
- You hold a student, visitor, transit or temporary business or work visa, and the Minister thinks you are not genuine in your declared intentions, or are acting in the wrong manner.
- Your sponsor was paid in some manner to sponsor you, or they are not complying with their obligations.
- You request that your visa be canceled.
How to response to s116 cancellation
Rights to revoke the visa cancellation
When a visa is canceled under Section 116, the visa holder generally has the right to internally request the Minister of Home Affairs (Minister) to revoke the cancellation of the visa. However, when the minister thinks you might pose a risk to the health, safety or good order of the community, the holder does not have the right to request the revocation of the cancellation.
Request to revoke the cancellation is very useful if you are not in Australia.
Rights to merit review of the visa cancellation
In most cases, if you are in Australia, you can appeal to the Administrative Appeals Tribunal (AAT) for review of a visa cancellation decision. You must do so within strict timeframes, or you will lose the opportunity to have your case reviewed.
The Tribunal is an independent body, which has the power to affirm, substitute or remit a decision made by the minister or his delegates. The Tribunal will review all aspects of the decision and may also request additional supporting documents prior to deciding whether the decision should be in your favor.
If the decision is in your favor, your original visa will be restored.
Rights to judicial review of the visa cancellation
If the Tribunal affirms the decision to cancel a visa, the visa holder has 35 days from the date of the decision to file a Judicial Review application with the Federal Circuit Court (FCC).
The Court may review a decision only in order to determine whether a jurisdictional error has been made. The court does not have the power to overturn the decision to cancel a visa merely because it would have made a different decision.
If the court finds a jurisdictional error has been made, this may or may not result in the visa cancellation being altered.
Facing the visa cancellation under s116?
If you are faced with cancellation, you need to argue that the ground for cancellation does not exist, or there is a reason why your visa should not be canceled. This requires knowledgeable and dedicated representation to the authority.
To choose the right forum arguing your case your are most likely need an experienced lawyer to represent on your behalf to Minister, AAT or FCC.
Also, you must be mindful about your argument that not to trigger other Visa Cancellation under s501 related to criminal conducts
S116 and s501 of Migration Act 1958 give the Minister the power to cancel your Australian visa or citizenship, it is the most litigated areas in Australian migration law because the power is not defined clearly.